Bencivenga v. Osceola County

District Court of Appeal of Florida

Bencivenga v. Osceola County

140 So. 3d 1035, 2014 WL 2129896, 2014 Fla. App. LEXIS 7814

CourtDistrict Court of Appeal of Florida

DecidedMay 23, 2014

DocketNo. 5D13-3309

StatusPublished

Cited by2 cases

This text of 140 So. 3d 1035 (Bencivenga v. Osceola County) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bencivenga v. Osceola County, 140 So. 3d 1035, 2014 WL 2129896, 2014 Fla. App. LEXIS 7814 (Fla. Ct. App. 2014).

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Opinion

EVANDER, J.

David Bencivenga seeks second-tier cer-tiorari review of a final order entered by the circuit court in its appellate capacity. The underlying proceeding was a code enforcement action concerning a parcel of developed real property owned by Benci-venga. In the original proceeding before the Code Enforcement Board (“CEB”), Osceola County alleged a violation of its ordinances and a violation of the Florida Building Code, stemming from Benciven-ga’s failure to obtain building permits for four structures on the property. Benci-venga did not dispute that the structures were constructed without building permits, but maintained that pursuant to section 604.50, Florida Statutes (2008),¹ the construction of the structures did not require building permits. At the conclusion of the CEB hearing, the Board found in favor of Osceola County. Bencivenga then appealed the CEB order to the circuit court. The circuit court affirmed the order, holding that Bencivenga was afforded procedural due process, the Board’s findings and conclusion did not depart from the essential requirements of law, and the findings and conclusion were based on competent, substantial evidence. Benci-venga now seeks second-tier certiorari review in this court.

Where a party seeks appellate review of an administrative action, the circuit court must determine: (1) whether procedural due process was afforded, (2) whether the essential requirements of the law were observed, and (3) whether the administrative findings and judgment are supported by competent, substantial evidence. City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982). On second-tier certiorari review, the district court of appeal is limited to determining whether the circuit court afforded procedural due process and applied the correct law. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995). Significantly, this court cannot, as Bencivenga implicitly requests, second-guess the circuit court as to whether the CEB’s decision was supported by competent, substantial evidence.

The standard of review for certiorari in the district court effectively eliminates the substantial competent evidence component.

Haines City, 658 So.2d at 530.

Although we may be sympathetic to some of Bencivenga’s arguments, the limited scope of second-tier certiorari review compels us to deny the petition.

[1037]*1037PETITION FOR WRIT OF CERTIO-RARI DENIED.

TORPY, C.J. and LAWSON, JJ., concur.

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EVANDER, J.

David Bencivenga seeks second-tier cer-tiorari review of a final order entered by the circuit court in its appellate capacity. The underlying proceeding was a code enforcement action concerning a parcel of developed real property owned by Benci-venga. In the original proceeding before the Code Enforcement Board (“CEB”), Osceola County alleged a violation of its ordinances and a violation of the Florida Building Code, stemming from Benciven-ga’s failure to obtain building permits for four structures on the property. Benci-venga did not dispute that the structures were constructed without building permits, but maintained that pursuant to section 604.50, Florida Statutes (2008),¹ the construction of the structures did not require building permits. At the conclusion of the CEB hearing, the Board found in favor of Osceola County. Bencivenga then appealed the CEB order to the circuit court. The circuit court affirmed the order, holding that Bencivenga was afforded procedural due process, the Board’s findings and conclusion did not depart from the essential requirements of law, and the findings and conclusion were based on competent, substantial evidence. Benci-venga now seeks second-tier certiorari review in this court.

Where a party seeks appellate review of an administrative action, the circuit court must determine: (1) whether procedural due process was afforded, (2) whether the essential requirements of the law were observed, and (3) whether the administrative findings and judgment are supported by competent, substantial evidence. City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982). On second-tier certiorari review, the district court of appeal is limited to determining whether the circuit court afforded procedural due process and applied the correct law. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995). Significantly, this court cannot, as Bencivenga implicitly requests, second-guess the circuit court as to whether the CEB’s decision was supported by competent, substantial evidence.

The standard of review for certiorari in the district court effectively eliminates the substantial competent evidence component.

Haines City, 658 So.2d at 530.

Although we may be sympathetic to some of Bencivenga’s arguments, the limited scope of second-tier certiorari review compels us to deny the petition.

[1037]*1037PETITION FOR WRIT OF CERTIO-RARI DENIED.

TORPY, C.J. and LAWSON, JJ., concur.

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Bluebook (online)

140 So. 3d 1035, 2014 WL 2129896, 2014 Fla. App. LEXIS 7814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bencivenga-v-osceola-county-fladistctapp-2014.

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